Citation Nr: 21015595 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-34 438A DATE: March 17, 2021 ORDER Entitlement to a disability rating in excess of 40 percent disabling for limitation of motion, lumbar spine, with bulging disc L5-S1 and low back pain is denied. REMANDED Entitlement to a disability rating in excess of 20 percent disabling for status post anterior cruciate ligament reconstruction and degenerative joint disease of the left knee is remanded. FINDING OF FACT The Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine at any time during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to May 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA). This case was remanded in September 2018, December 2019, and July 2020 for further development. The Board finds that the RO has substantially complied with its remand directives, and the Board may now proceed with adjudication. Additionally, the Board notes that the issues on appeal were remanded to afford the Veteran VA examinations for his knee and spine disabilities. These examinations were scheduled by the RO; however, the Veteran contacted VA to cancel both examinations. See January 2021 Exam Requests. No reason was given for the cancellations, and no request was made to reschedule. Accordingly, VA has fulfilled its duty-to-assist obligations, and the Board may proceed with adjudication. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In addition, the United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 1. Entitlement to a disability rating in excess of 40 percent disabling for limitation of motion, lumbar spine, with bulging disc L5-S1 and low back pain The Veteran asserts that his service-connected lower back disability is more severe than is reflected by his current evaluation. The Veteran is in receipt of a 40 percent rating for his service-connected lumbar spine disability from October 10, 2002. Disabilities of the spine are rated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (encompassing Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). The General Rating Formula stipulates, in pertinent part, that a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. These criteria are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). The Veteran may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides, in pertinent part, that a maximum 60 percent rating is assigned with incapacitating episodes having a total duration of at least six weeks during the past 12 months. See id. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). After a careful review of the evidence of record, the Board finds that a rating in excess of 40 percent for the Veteran’s lumbar spine disability is not warranted at any time during the period on appeal. As noted above, to qualify for entitlement to the next higher rating of 50 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. During the period on appeal, the Veteran was afforded VA examinations for his spine in December 2010 and July 2019. Significantly, the Veteran was not found to have ankylosis of the spine at either of these VA examinations. Moreover, range of motion testing performed on the Veteran’s thoracolumbar spine during the relevant period does not indicate that, at any time, the Veteran’s lumbar spine condition more closely approximated disability indicative of ankylosis of the spine. In this regard, on regular range of motion testing, the Veteran was found to have forward flexion limited to, at most, 80 degrees (See July 2019 VA examination report), and extension limited to, at most, 25 degrees (See July 2019 VA examination report). With regard to additional range of motion loss following repetitive use over time or periods of flare-up, the VA examiner who performed the July 2019 VA examination estimated that during these periods the Veteran’s forward flexion would be limited to 75 degrees, and extension would be limited to 25 degrees. Id. Thus, even when considering the Veteran’s disability picture when his lumbar spine disability is at its most severe, he would still be able to achieve some degree of forward flexion and extension of the spine. Notably, the Veteran has never asserted that during the most severe flare-ups of lumbar spine pain, he is rendered completely unable to move his spine. As such, the Board finds that there is no evidence of ankylosis, or fixation of a spinal segment in a neutral position (zero degrees), at any time. In light of the above, the Board does not find that the Veteran’s lumbar spine disability manifests by unfavorable ankylosis of the entire thoracolumbar spine. In making this finding, the Board notes that unfavorable ankylosis, as defined 38 C.F.R. § 4.71a, requires ankylosis of the thoracolumbar spine that results in at least one of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Because there is no evidence to support a finding that the Veteran has ankylosis of the spine, there is no need to further consider any of the above complications. The Board has also considered whether the Veteran is eligible for a higher rating under Diagnostic Code 5243 for IVDS. In this regard, the Board notes that the Veteran has never prescribed bed rest by a physician; therefore, a higher rating under Diagnostic Code 5243 for IVDS is not warranted. There is evidence of possible radiculopathy due to the Veteran’s service-connected back condition. In March 2016 correspondence, the Veteran reported that he had episodes of leg numbness and low back pain. The December 2010 VA examiner noted that the Veteran had radiating numbness down his left leg but did not discuss whether these symptoms were considered an objective neurologic abnormality associated with his lumbar spine disability. See December 2010 VA examination. The July 2019 VA examiner opined the Veteran did not have radiculopathy but did not discuss the Veteran’s reports of numbness. See July 2019 VA examination. The Board’s VA treatment records are also negative for treatment or diagnosis of radiculopathy. In July 2019, the Board remanded this case to afford the Veteran a VA examination to assess the nature and etiology of any radiculopathy; however, the Veteran cancelled his scheduled examination. The cancellation of that examination precludes the Board from having the evidence that would be needed to substantiate a finding of radiculopathy, if present. Accordingly, the Board must evaluate the evidence of record, and it finds that the preponderance of the evidence does not support the Veteran experiencing radiculopathy due to his lower-back disability. The Board acknowledges that the Veteran sincerely believes that his disability is more severe than the currently assigned rating reflects. In statements to his VA examiners, the Veteran has reported that he suffers from constant pain in the lumbar spine that increases in severity with activities such as heavy lifting and prolonged walking, standing, or sitting. The Veteran is competent to testify to the presence of observable symptoms, such as experiencing an increased level of pain. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to report that his lumbar spine disability is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board sympathizes with the Veteran that his lumbar spine disability significantly impacts his quality of life. However, it must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Accordingly, the Board finds that a rating in excess of 40 percent for the lumbar spine disability is not warranted at any time during the period on appeal. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application, and the Veteran’s claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted in the July 2020 Board decision, the Veteran requested to withdraw his TDIU claim in a May 2020 written statement. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent disabling for status post anterior cruciate ligament reconstruction and degenerative joint disease of the left knee is remanded. The Veteran asserts that his left knee disability is more severe than is reflected by his evaluation. The Board notes that, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. See 83 Federal Register 76453 (November 30, 2020). VA published in the Federal Register the proposed rule for Schedule for Rating Disabilities: musculoskeletal system and muscle injuries on November 30, 2020. The summary in the Federal Register notes that the purposed of this revision is to ensure that the schedule uses current medical terminology and provided detailed and updated criteria for the evaluation of the musculoskeletal disabilities. Notably, the revised changes effected criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. The Veteran is currently in receipt of a disability rating of 20 percent for status post anterior cruciate ligament reconstruction and degenerative joint disease of the left knee, evaluated under DCs 5010-5260. He separately is in receipt of a 10 percent disability rating left knee instability under DC 5257. The Board finds that to fully and fairly evaluate the nature and severity of the Veteran’s service-connected left knee disabilities, a new examination is needed. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to evaluate the severity of his service-connected left knee disability. The examiner should provide an assessment of the current nature and severity of the Veteran’s left knee disabilities. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition. Also, all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The VA examiner should note the revised changes of the criteria for rating musculoskeletal system and muscle injuries disabilities, effective February 7, 2021, to include the change in criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. With regard to Diagnostic Code 5257, the examiner should consider: (a) the extent of any sprain or ligament tear (and repair thereof), (b) the use of assistive devices (e.g., a cane, crutches, or a walker), (c) the need for bracing for ambulation, and (d) the extent and degree of any current instability. Regarding Diagnostic Code 5262, and medial tibial stress syndrome/shin splints, the examiner should consider: (1) the extent and duration of treatment; and (2) responsiveness to surgery, shoe orthotics, or other conservative treatment, if applicable to the case at hand. The claims file must be reviewed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.